Mr. Justice Gerard Hogan delivered his Judgment on the 18th November, 2014 in the case of Zara McCabe v South Dublin City Council  IEHC 529, 2012 No 290 CA concerning an action for personal injuries arising from an incident which took place on 2nd June 2009 when the plaintiff’s foot became caught in an opening in the surface of a footpath as she walked along Brookview Drive, Tallaght, Dublin 24 sometime around 11pm that evening.
It was not in dispute but that as a result of the incident Ms. McCabe fell on her right hand and banged her head. The fundamental question which arose in this appeal from the Circuit Court was whether the local authority, South Dublin County Council, was liable in negligence for these injuries or whether it could invoke the traditional rule of immunity for “non-feasance” for this purpose.
There was no doubt as to fault
The dimensions of opening in question were about 8cm. by 8cm. and it was situate on the footpath opposite No. 12 Brookview Drive. The opening in question was missing its stopcock cover. It was clear from the photographs supplied by the plaintiff’s engineer that the opening presented a danger to the public at the time of the incident in question.
The Local Authority had been aware of the problem
In January 2009 the Roadworks Control Unit of the Council received a complaint that a stopcock cover was missing outside No. 12 Brookview Drive. The Council then took steps to repair the cover and it appears that this was done on 13th February 2009. However, there was the possibility that the opening was not actually repaired in February 2009, whether through oversight or otherwise or that the opening was in fact repaired by the Council, but that before the concrete could set, the opening was removed or tampered with as a result of anti-social behaviour on the part of unknown third parties. Evidence was given that there were in fact significant problems of anti-social behaviour involving the removal of the stopcock covers. These covers were very easily removed while the concrete is still fresh.
Judge Hogan concluded that it was unnecessary for him to make any adjudication on these 2 alternatives because, irrespective of how these factual issues were resolved, the result in law was nonetheless the same.
The “misfeasance”/”nonfeasance” distinction
The maintenance and repair of all such roads is a function of the relevant local authority. However, so far as the question of liability of a local authority qua highway authority is concerned, the common law draws a clear distinction between “non-feasance” (i.e., a failure to act to maintain the roads and footpaths) on the one hand and “misfeasance” (i.e., the negligent repair of the road and footpath) on the other: If an authority commits a positive act of negligence in the construction of a footpath or in its maintenance (that is, an act of “misfeasance”), it is liable to a person injured thereby. But if it merely fails to maintain a footpath so that it falls into disrepair (that is guilty merely of “non-feasance”) it is not liable to someone injures due to its lack of repair.
The “non-feasance” rule applied in this instance
In the present case the Council either did not repair the opening at all (even though it had set out to do so) or, having done so, the opening was subsequently tampered with and removed by persons unknown. On any view of these two possibilities, the Council was not liable by reason of the operation of the “non-feasance” rule. If the opening was not repaired at all then the Council had no liability by reason of its inaction. If, on the other hand, the opening was in fact repaired but it was subsequently removed or tampered with by persons unknown, there was equally no liability on the part of the Council. In that latter situation the most that could be said was that the Council thereafter failed to act when it knew (or ought to have known) that the opening presented a hazard to the public. Nevertheless, even in this situation, the “non-feasance” rule served to bar any action in respect of this ground.
The Council could only have been liable if there had been evidence that it had repaired the opening and that it had done so in a negligent fashion. In those circumstances, there would have been an act of actionable “misfeasance”. But there was in fact no evidence to this effect and the judge concluded that he must accordingly affirm the decision of the Circuit Court and dismiss the plaintiff’s action.
The Judge`s concerns
Noting that previous Decisions of the Supreme Court described the rule as either “anomalous” (see O’Brien v. Waterford County Council  I.R. 1, 8, per Murnaghan J.) or “unsatisfactory” (see Kelly v. Mayo County Council  I.R. 315, 324 per Kingsmill Moore J.), the judge also pointed to the fact that the distinction between “non-feasance” and “misfeasance” was actually abolished by the enactment of s. 60(1) of the Civil Liability Act 1961 (“the 1961 Act”), but over 50 years later the commencement of that sub-section awaits the making of a Government Order. That sub-section has never been brought into force by the Government and in The State (Sheehan) v. Government of Ireland  I.R. 550 the Supreme Court rejected the argument that the Government was legally obliged to make such an Order.
The judge commented that the rule now probably lies beyond the capacity of the courts to repair or amend. If, then, the law is considered to be unsatisfactory, the remedy for this lies either with the Government (which could, should it consider it appropriate to do so, make a Commencement Order in respect of the s. 60(1) of the 1961 Act) or with the Oireachtas which could effect further legislative change should it think necessary to do so.
The public path which was a danger to the public
Mr Justice Hogan concluded his judgment by stating that he arrived at this conclusion most reluctantly, because the plaintiff had clearly suffered not inconsiderable injuries by reason of an opening on a public path which was a danger to the public and which was apt to catch pedestrians unawares.